The Right Coast

March 18, 2006
Say It Ain't So, Ropes & Gray, Part III
By Gail Heriot

I'm still getting fresh e-mail about my posts (here and here) on Ropes and Gray. Maybe somebody linked to them today. Here are my responses to the arguments made:

1. Again, my point is not that Ropes & Gray should be required to take a case that its attorneys don't want to take. Ropes & Gray is perfectly free to refuse to take (almost) any case for (almost) any reason. My point is that they did take the case. That part of it was a done deal. No one denies that Catholic Charities was a client of Ropes & Gray and that a fiduciary duty towards Catholic Charities had therefore arisen. No one denies that Ropes & Gray specifically undertook to assist Catholic Charities with its efforts to obtain a religious dispensation from Massachusetts law requiring adoption agencies to treatment gay couples the same as straight couples. (That's why the Harvard law students were threatening to picket Ropes & Gray.) If Ropes & Gray had had a problem with representing an adoption agency that does not wish to adopt children out to gay couples, it should have said so earlier.

What caused Ropes & Gray to withdraw was not its moral objections to Catholic Charities' conduct. Although there may have been lawyers at Ropes & Gray who were disappointed with their firm for refusing the representation on that ground, the decision had been made. Instead, the firm withdrew after its managing partner met with a representative of the Harward Law School chapter of Lambda--an organization that was threatening to protest/boycott/picket Ropes & Gray on future recruiting trips to Harvard if it continued to represent Catholic Charities in connection with the adoption issue. It is difficult to avoid the conclusion that there was a causal connection between these treats and the decision to withdraw (and Ropes & Gray has not denied such a connection). And, as far as I can see, it is impossible to deny the appearance of a causal connection. The conduct of Ropes and Gray was thus utterly inappropriate. Lawyers cannot put their interests ahead of their clients. Yet that is exactly what Ropes & Gray apparently did. Given a choice between a pleasant and successful recruiting season and the interests of a client, Ropes & Gray seems to have chosen its own interests.

Spinelessness is an unattractive quality in any person. In a lawyer, it is ...well...disabling.

2. Caving to pressure like that threatened by the Harvard law students is a disservice to the client. The client is worse off than if the representation had never been undertaken. If a powerful firm like Ropes & Gray turns and runs in the face of pressure like this, how are other law firms supposed to act? Will any qualified firm step in? Will the now-triumphant students press for more? It is telling that Catholic Charities gave up its quest just a week after Ropes & Gray announced that it would withdraw as Catholic Charities' counsel. Evidently, no law firm was eager to step in after Ropes & Gray's hasty retreat.

3. Some letter writers have suggested that Ropes & Gray should not be required to stick its neck out for a pro bono client. First, I'm sure it would come as a surprise to most lawyers to learn that their fiduciary duty to a client only applies if the client is paying the big bucks. Second, Catholic Charities does not appear to have been a pro bono client. (And I'm surprised that anyone would suppose that it was. The Catholic Church is not exactly impecunious.) The Boston Globe article cited in my first post stated that a Catholic Charities representative said that Ropes & Gray would not be billing Catholic Charities. In the context, the clear implication was that Catholic Charities would have been billed if Ropes & Gray had continued in its representation.